March 22, 2013

Practitioners Say FCC Unlikely to Undergo Major Policy Shift with New Chief

When Federal Communications Commission chairman
Julius Genachowski announced his departure from the agency earlier today, it
came as little surprise to practitioners who generally agreed that agency
policies under a new chairman would remain consistent.

"I wouldn't
expect the new chairman to change the policy direction of the FCC to a great
degree, but I would expect them to put some of their staff in key positions,
which could lead to some delay or disruption," said Samuel
Feder, chair of Jenner & Block's communications practice.
"Changes might slow things down."

Jonathan
Nuechterlein, chair of the communications, privacy and internet law practice
group at Wilmer Cutler Pickering Hale and Dorr, said that without knowing for
certain who Genachowski's replacement will be, it makes it difficult to predict
what policy changes if any will occur.

"People
overstate the change that a replacement at the top creates for ongoing
initiatives at the FCC," Nuechterlein said. "Much of what the FCC
does is not controversial. The FCC does a lot of important things that don't
hit the political radar screen and are multiyear undertakings by career staff
people."

Genachowski's
announcement followed those of Republican Commissioner Robert McDowell and
Chief Counsel Sherrese Smith, who on Wednesday both announced their departures.

The announcements
by Genachowski and McDowell open up two of the top five slots at the agency,
for which President Barack Obama is expected to nominate a Democrat and a
Republican, respectively, to replace them. Practitioners agreed that the timing
of the two key departures was not coincidental, given that pairing nominees
from opposing parties will speed up the confirmation process.

"You are
seeing that today in the gridlock of Washington, D.C. that a pairing works out
best," said Wiley Rein chairman and former FCC chairman Richard Wiley.
"I don't think it was happenstance that they are leaving at the same
time."

Practicing
attorneys identified several ongoing initiatives and matters that a new
chairman would inherit. Among them are universal access to high-speed,
broadband Internet; net neutrality; broadband spectrum and the universal
service support program.

Wiley identified
the plan to free spectrum for wireless broadband use and the rules governing it
as "the biggest priority that the agency will have in the next year or
two."

Nuechterlein
highlighted Verizon Inc.'s challenge to the net neutrality rule, a case pending
before the U.S. Court of Appeals for the D.C. Circuit. He said the court
could issue a ruling as early as this summer.

Overall,
attorneys felt that overseeing the agency during a time of great technological
advancement was a major challenge, and commended the outgoing chairman for his
efforts. In a statement, Obama thanked Genachowski for his focus on
"spurring innovation, helping our businesses compete in a global economy
and helping our country attract the industries and jobs of tomorrow."

"Because of
his leadership, we have expanded high-speed Internet access, fueled growth in
the mobile sector, and continued to protect the open Internet as a platform for
entrepreneurship and free speech," Obama said.

Covington & Burling partner Yaron Dori commended Genachowski for his work as
chairman, but said that his legacy would only become clear when viewed in
hindsight.

"I think being chairman of the FCC in an era of great change in
technology is always a challenge," said Dori. "This chairman understood
the changes and tried to orient the agency in a way that respected legacy
technologies, but at the same time looked ahead at new technologies. I think
there is a mixed verdict on how carefully he balanced those interests. I think
time will tell if he got that balance right."